This is a post-conviction case in which petitioner claims that he received inadequate assistance of counsel at his criminal trial. Specifically, petitioner contends that he was not informed or otherwise aware.of the possibility of a minimum sentence before he pleaded no contest and, consequently, that his conviction was void under the holding of
Hartzog v. Keeney,
We hold: (1) The holding of
Hartzog v. Keeney, supra,
applies to petitioner. Applying
Hartzog
to petitioner does not present an issue about the retroactive application of a new rule, because
Hartzog
did not announce a new rule. It merely applied the rule announced in
Krummacher v. Gierloff,
PROCEDURAL BACKGROUND
In January 1987, petitioner pleaded no contest to a charge of sodomy in the first degree. ORS 163.405.
1
The trial court sentenced him to 20 years’ imprisonment with a 10-year minimum. ORS 144.110(1).
2
Petitioner appealed, and in
*506
June 1987 the Court of Appeals affirmed his conviction from the bench, without issuing an opinion.
State v. Moen,
Earlier in September 1987, this court had decided
Hartzog v. Keeney, supra. Hartzog
held that appointed counsel does not provide adequate assistance under Article I, section 11, of the Oregon Constitution
3
if counsel fails to advise a criminal defendant, before the defendant pleads guilty, that the defendant may receive a minimum sentence under ORS 144.110(1).
“if there is evidence from which the post-conviction trial court finds that before pleading guilty the criminal defendant was otherwise aware of the possibility of imposition of a minimum sentence, appointed counsel’s failure to advise does not render the conviction void.” Ibid.
In 1989, petitioner filed a fifth amended petition for post-conviction relief. He alleged, among other things, that he had received inadequate assistance of trial counsel, because his counsel had not informed him that the trial court might impose a minimum sentence under ORS 144.410(1). The post-conviction court made these findings:
“2. Petitioner’s trial counsel did not inform petitioner of the possibility of a minimum sentence under ORS 144.110;
“3. Petitioner was aware prior to entry of his no contest plea of the possibility of a minimum sentence under ORS 144.110.”
*507 The court drew the following conclusions of law from those facts:
“2. Petitioner’s trial counsel’s failure to advise petitioner of the possibility of a minimum sentence was inadequate assistance of counsel under the standards of Hartzog v. Keeney,304 Or 57 , [742] P2d [600] (1987);
“3. Petitioner otherwise knew that he could receive a minimum sentence under ORS 144.110 and therefore his conviction was not rendered void by his counsel’s failure to advise him of that possibility. Hartzog v. Keeney,304 Or at 64 .”
Accordingly, the post-conviction court “denied and dismissed” the petition.
Petitioner appealed, contending that the post-conviction court erred in finding that he was aware of the possibility of a minimum sentence and in concluding that his conviction was, therefore, not rendered void.
4
The Court of Appeals held that petitioner had received inadequate assistance of counsel under
Hartzog v. Keeney, supra.
The Court of Appeals concluded that counsel must advise defendants of “the full potential exposure to incarceration” in the current case and that “[p]etitioner’s knowledge, based on the imposition of a different minimum sentence in a different case, does not meet that standard.”
Moen v. Peterson,
The state had argued to the Court of Appeals that
Hartzog,
which was decided after petitioner was sentenced, should not be applied retroactively under the criteria established in
State v. Fair,
“ ‘* * * (a) purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards. * * *’ Stovall v. Denno, [388 US 293 ,87 S Ct 1967 ,18 L Ed 2d 1199 , 1203 (1967)].”263 Or at 388 .
*508
The Court of Appeals held that the factors in
Fair
are inapplicable to post-conviction proceedings. It concluded that
Fair
is relevant only when considering whether to apply a new principle after conviction, but while a case is on direct appeal. It reasoned that a post-conviction proceeding is a “wholly distinct proceeding.”
The state filed a petition for review in this court, arguing that the Court of Appeals was wrong to conclude that the application of
Hartzog
to petitioner was prospective. The Court of Appeals treated the petition for review as a petition for reconsideration, ORAP 9.15(1), and allowed it. The court adhered to its former decision but also considered the criteria in
Fair
and concluded that
Hartzog
applies retroactively under those criteria.
Moen v. Peterson,
We then allowed the state’s petition for review.
APPLICATION OF HARTZOG v. KEENEY
A court must analyze retroactivity only when considering whether to apply a newly announced rule in a given case. Richardson, Fairness Over Fortuity: Retroactivity Revisited and Revised, 1989 Utah L Rev 11,12. If the holding *509 in Hartzog v. Keeney, supra, was not a new rule, then no question of retroactivity arises. As a threshold issue, then, we consider whether this court announced a new rule in Hartzog. We conclude that Hartzog did not announce a new rule, but simply applied the general rule announced in Krummacher v. Gierloff, supra, to specific facts.
In
Krummacher v. Gierloff, supra,
this court addressed the proper standard for evaluating whether counsel provides adequate assistance to a criminal defendant under Article I, section 11, of the Oregon Constitution. First, the court overturned its previous “farce and mockery of justice” standard.
“[Clounsel’s functions include informing the defendant, in a manner and to the extent appropriate to the circumstances and to the defendant’s level of understanding, of the existence and consequences of nontactical choices which are the defendant’s to make, so as to assure that the defendant makes such choices intelligently. This function of counsel is particularly important when a defendant is called upon to waive fundamental rights, as by a guilty plea or waiver of jury trial [citation omitted].”290 Or at 874-75 .
In
Lyons v. Pearce,
“One function a criminal defense attorney performs for a client is to disclose the consequences of a guilty plea and conviction.”
The court in
Hartzog v. Keeney, supra,
relied on the passages quoted above from
Krummacher v. Gierloff, supra,
and
Lyons v. Pearce, supra,
in holding that failure to inform a criminal defendant of a possible minimum sentence before
*510
the defendant enters a plea is inadequate assistance of counsel, because it is a failure to advise of a consequence of the plea.
Next, we are called on to apply Hartzog v. Keeney, supra, to petitioner’s case. We recognize that the petitioner in Hartzog pleaded guilty, while the petitioner in this case pleaded no contest. We believe that the rationale of Hartzog is as applicable to no contest pleas as it is to guilty pleas, because criminal defendants who plead no contest waive virtually the same fundamental rights as do criminal defendants who plead guilty. See ORS 135.385(2) (court shall advise defendants who plead guilty or no contest that they waive their rights to trial by jury, to confrontation, and against self-incrimination).
The post-conviction court found that petitioner’s counsel did not inform him of the possibility of the 10-year minimum. The court also found, however, that “[petitioner was aware prior to the entry of his no contest plea of the possibility of a minimum sentence under ORS 144.110,” because he had received a five-year minimum sentence in another case. The post-conviction court, therefore, concluded that petitioner was not entitled to relief under the rule in
Hartzog
quoted above. The Court of Appeals held that the post-conviction court’s finding was not supported by the record.
Moen v. Peterson, supra,
The state contends that the Court of Appeals exceeded its scope of review under ORS 138.650,
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by “finding
*511
as fact” that petitioner was unaware of the possibility of a 10-year minimum sentence, when the post-conviction court had found that petitioner was aware of it. The state misconstrues the Court of Appeals’ holding. It did not find a fact different than the facts found by the post-conviction court. Rather, it held that the post-conviction court’s finding was not supported by the evidence. The inquiry whether a finding is supported by the evidence is a question of law, properly within the Court of Appeals’ scope of review.
See Hedin v. Cupp,
We agree with the Court of Appeals that, in this instance, the evidence fails to support the disputed finding. The plea agreement contained no reference to the possibility of a minimum sentence; it disclosed only the maximum sentence. Neither did the trial court inform petitioner of the possibility of a minimum sentence before accepting his no contest plea. The pertinent portion of the transcript contains this exchange between petitioner and the post-conviction court:
“THE COURT: Are you saying that you knew about mandatory mínimums or you did not?
“THE WITNESS: I did not, sir.
“THE COURT: If you had gotten one, it seems to me you would know about it, that there are such things.
“THE WITNESS: I got one [a five-year minimum] in the sentencing in the first trial but it was a recommendation that the Board then upheld.
“THE COURT: But you knew that there was such a thing as a mandatory minimum?
“THE WITNESS: Well, only - I knew the judge could sentence me to that but it was never explained to me in this bargaining on the second trial that — that it would be anything like that at all.”
That evidence is insufficient to support a finding of petitioner’s awareness of the potential application of ORS 144.110 in the present case.
*512 MODIFICATION OF HARTZOG v. KEENEY
The state also asks us to reconsider the assumption, implicit in
Hartzog v. Keeney, supra,
that counsel’s failure to advise a petitioner of the possibility of a minimum sentence, when the petitioner otherwise lacks knowledge that a minimum may apply,
per se
has a tendency to affect the result of thé prosecution.
We find the reasoning of the Supreme Court of the United States, when it considered this issue in
Hill v. Lockhart,
“ ‘The government is not responsible for, and hence not able to prevent, attorney errors that will result in reversal of a conviction or sentence. Attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. They cannot be classified according to likelihood of causing prejudice.’ ” (Quoting Strickland v. Washington,466 US 668 , 693,104 S Ct 2052 ,80 L Ed 2d 674 (1984).)
The Court also reasoned that “requiring a showing of ‘prejudice’ from defendants who seek to challenge the validity of their guilty pleas on the ground of ineffective assistance of counsel will serve the fundamental interest in the finality of *513 guilty pleas.” Id. at 58. That interest is particularly compelling when considering whether to set aside a plea that is otherwise entered knowingly, whether it be a guilty plea or, as in this case, a plea of no contest:
“ ‘The impact is greatest when new grounds for setting aside guilty pleas are approved because the vast majority of criminal convictions result from such pleas. Moreover, the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea.’ ” Ibid, (quoting United States v. Timmreck,441 US 780 , 784,99 S Ct 2085 ,60 L Ed 2d 634 (1979), quoting United States v. Smith, 440 F2d 521, 528-29 (7th Cir 1971) (Stevens, J., dissenting)).
We hold: In order to prevail in this case, petitioner must show by a preponderance of the evidence
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that, had counsel informed him of the possibility of a minimum sentence, or had he otherwise been aware of it, he would not have pleaded no contest. Our holding is consistent with ORS 138.530(l)(a), which directs the court to grant post-conviction relief only when “a substantial denial” of constitutional rights occurred in the proceedings resulting in petitioner’s conviction, which renders the conviction void. Our holding is also consistent with
Krummacher v. Gierloff, supra,
and
Trujillo v. Maass,
There was evidence in this case from which a fact-finder could have concluded either that petitioner was prejudiced, or the contrary. Petitioner testified that he would not have pleaded no contest, had he known of the possibility of a 10-year minimum sentence. There is contrary evidence in the record, such as petitioner’s testimony that the reason for his plea was to avoid a trial at which his children might learn of things that he did not want them to know, and the facts that he received substantial benefits from the plea agreement (including dismissal of four additional charges), that he was aware of the possibility of a 20-year maximum sentence, and that he did not object or comment after the prosecutor, *514 speaking in open court in petitioner’s presence, recommended a 10-year minimum to the sentencing court.
Because the pertinent procedures' extant at the time petitioner filed his post-conviction case did not clearly require him to prove prejudice, however, he had insufficient notice that he had to do so. Petitioner might have additional evidence to present on that point. If we were to remand this case to the post-conviction court to consider the issue of prejudice on the existing record, a federal due process question might arise. Accordingly, we remand the case to the post-conviction court for further proceedings wherein petitioner may present any additional evidence on the issue of prejudice, after which the post-conviction court shall make its decision.
The decision of the Court of Appeals is affirmed on different grounds. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
Notes
ORS 163.405 provides in part:
“(1) A person who engages in deviate sexual intercourse with another person or causes another to engage in deviate sexual intercourse commits the crime of sodomy in the first degree if:
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“(c) The victim is under 16 years of age and is the actor’s brother or sister, of the whole or half blood, the son or daughter of the actor or the son or daughter of the actor’s spouse * *
ORS 144.110(1) provides:
*506 “In any felony case, the court may impose aminimum term of imprisonment of up to one-half of the sentence it imposes.”
Felons sentenced under this statute are not eligible for release on parole until they have served the minimum term, unless a majority of the Board of Parole votes for earlier release. ORS 144.110(2)(a).
Article I, section 11, of the Oregon Constitution, provides in part:
“In all criminal prosecutions, the accused shall have the right * * * to be heard by himself and counsel * *
Petitioner also contended that the trial court was required under both the state and federal constitutions to advise him of the possibility of a minimum sentence under ORS 144.110. The Court of Appeals rejected the argument, and petitioner did not seek review of that holding in tids court.
ORS 138.550(2) provides in part:
“ [N]o ground for relief may be asserted by petitioner in a petition for relief under ORS 138.510 to 138.680 unless such ground was not asserted and could not reasonably have been asserted in the direct appellate review proceeding. If petitioner was not represented by counsel in the direct appellate review proceeding, due to lack of fluids to retain such counsel and the failure of the court to appoint counsel for that proceeding, any ground for relief under ORS 138.510 to 138.680 which was not specifically decided by the appellate court may be asserted in the first petition for relief under ORS 138.510 to 138.680, unless otherwise provided in this section.”
Appellate review in post-conviction cases is limited to questions of law. ORS 138.650; ORS 138.220.
See Hartzog v. Keeney,
ORS 138.620(2) provides in part:
“The burden of proof of facts alleged in the petition shall be upon the petitioner to establish such facts by a preponderance of the evidence.”